STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN WINN,

AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

ERIC WILL CROSIER,

Respondent.

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) Case No. 05-2338PL

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this cause in Tallahassee, Florida, on October 10, 2005, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer Gilmore, Esquire

Brooks, LeBeouf, Bennett, Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

For Respondent: Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

1. Whether Respondent is guilty of gross immorality or an act of moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes;

2. Whether Respondent's conduct constitutes a violation of the Principles of Professional Conduct for the Education Profession in violation of Section 1012.795(1)(i), Florida Statutes;

3. Whether Respondent used institutional privileges for personal gain or advantage in violation of Florida Administrative Code Rule 6B-1.006(4)(c); and

4. If issues (1) through (3), or any of them, are determined against Respondent, what is the appropriate discipline, pursuant to Sections 1012.795(1) and 1012.796(7),

Florida Statutes.

PRELIMINARY STATEMENT

On October 25, 2004, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested a disputed-fact hearing pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings on or about June 29, 2005.

The final hearing was originally scheduled for

September 13, 2005. On September 6, 2005, an Unopposed Motion

to Continue was granted. The case was re-scheduled to be heard on October 10, 2005.

At the disputed-fact hearing, Petitioner presented the oral testimony of two witnesses. Respondent presented the oral testimony of one witness and also testified on his own behalf.

Respondent had one exhibit admitted in evidence.

A Transcript was filed on October 27, 2005. By agreement, both parties submitted Proposed Recommended Orders no later than November 14, 2005. The respective proposals have been considered. The Joint Pre-hearing Stipulation has been utilized as much as possible in this Recommended Order, but redundancy, typographical errors, punctuation, and style have been modified.

FINDINGS OF FACT

1. Respondent holds Florida Educator's Certificate 731624, covering the area of Social Science. His certificate was valid at all times material to this cause. It will remain valid through June 30, 2006.

2. At all times material, Respondent was employed as a teacher at Lincoln High School in the Leon County School District.

3. Respondent worked for the Leon County School District for approximately 11 years. During that period, he was never disciplined by the District, and he never received a poor performance evaluation.

4. Respondent's teaching certificate has never been disciplined by the Department of Education.

5. During the whole of Respondent's tenure at Lincoln High School, Respondent was a respected, popular, and effective educator. His competency as an educator is not at issue in this proceeding.

6. While employed at Lincoln High School, Respondent was the communications technology teacher, junior class sponsor, and sponsor of the photography club. As the communications technology teacher, he taught his students about sending and receiving information, paper making, printing documents, print making, radio, television, photography, videography, and computer-aided graphics.

7. Over the years, Respondent repeatedly volunteered to take pictures for school organizations, individual students, former students, and faculty and staff at Lincoln High School. Many of these photographs, including those taken of school sponsored events, were not part of his classroom responsibilities.

8. Also, Respondent and the photography club provided free photography services to anyone who asked for them. Respondent and the photography club supplied free black and white film for such photo shoots and developed the film. Color film was not provided by the club. If a subject wanted to be photographed in

   color, the subject had to provide the color film and take it elsewhere to be developed.

9. The avowed purpose of these photo shoots was practice for the photography class and club and sometimes to raise money for photographic supplies for school and club projects.

10. Many of the requests by former students were for wedding announcement photographs. One former student utilized these free services a few times for promotional photographs of his band. Another former student was pursuing a modeling career and requested a portfolio of photographs of herself.

11. Over the years, Respondent never attempted to hide these free photography services from the school administration.

12. Respondent did not seek permission from the school administration on a case-by-case basis to take any of these photographs himself because he believed that he was both permitted and encouraged by the school administration to provide these services. It is probable that the administration and faculty knew of some, but not necessarily all, of the photographic services being provided. For instance, sports and teachers' photographs discussed in the teachers' lounge were generally known, as were photographs done for school publications, but Lincoln High School's principal is credible in that she did not know Respondent was taking photographs for non- school-related projects, or of teachers or former students

    without any educational component. (See Findings of Fact 24- 25.)

13. As a result, Respondent was never cautioned or disciplined for his use of his classroom and school equipment after hours for non-school-related purposes.

14. During the 2002-2003 school year, Lincoln High School's Spring Break took place during the week of March 24-28, 2003.

15. On March 27, 2003, Respondent, whose date of birth is January 30, 1962, and a young woman, whose date of birth is October 3, 1983, used the Lincoln High School facilities and equipment for the purposes of a photo shoot. All equipment used was Lincoln High School property, except for the film, which was supplied by the Lincoln High School photography club.

16. The young woman is a former student of Respondent.

    
    

    She graduated from Lincoln High School in 2002. At no time material, was she a minor, a student in the Leon County School District, a student at Lincoln High School, or a student of Respondent.

17. While she had been a student at Lincoln High School, the young woman had taken Respondent's class in the same room as they used for the photo shoot during the 2002-2003 Spring Break. She had also been a member of the photography club while she had been a student and had become friends with Respondent. After

    graduation, she frequently returned to visit Respondent during class hours. Both the young woman and Respondent considered her visits platonic. Respondent never solicited these visits.

18. The young woman visited Respondent at Lincoln High School in December 2002. During this visit, she asked Respondent to help her with a photo shoot that she and her girlfriend had come up with, involving human form-type photographs. Respondent agreed to take the photographs, but a date was not set.

19. Human form photographs are still-life pictures of people that accentuate the form or shape of the human body with intense backlighting. They can be, but are not necessarily, nude or pornographic photographs. Some human form photographs are also taken in the Leon County School District at Lively Vocational Technical School.

20. Respondent had previously taken human form pictures of both male and female students at Lincoln High School, including photographs of a football player that accentuated the shape of his muscular bare back from the waist up.

21. At the time of the March 27, 2003, photo shoot, Respondent believed that it was "perfectly fine" to have an adult, non-student, male or female posing half-naked on the campus of a public high school.

22. After her December 2002 visit, Respondent made no attempt to contact the young woman regarding her proposed photo shoot. She, however, telephoned Respondent, sent him an e-mail, and stopped by the high school in March 2003, in an attempt to set up the photo shoot. The photo shoot was eventually scheduled for March 27, 2003, during Spring Break. No compensation for either Respondent or the former student was discussed or contemplated.

23. The Lincoln High School administration worked during 2003 Spring Break. Teachers were not required to work during Spring Break. However, it was not unusual for teachers to come onto campus during Spring Break.

24. Prior to Spring Break, Respondent informed Lincoln High School's principal and an assistant principal that he would be on campus to use the portrait studio and photo lab during Spring Break, and they made arrangements so that he could get into the school through his password to the security system on March 27, 2003. Respondent did not volunteer to either of them that he would have anyone with him on campus on March 27, 2003, let alone that nude or semi-nude photographs of a former student would be on his agenda that day.

25. Further, according to the principal's credible testimony, Lincoln High School's guidelines and those of the Leon County School Board require that Respondent request the

    principal's permission before conducting a photo shoot outside regular school hours; that using school facilities and equipment for a photo shoot during Spring Break would have been considered a "special purpose" not affiliated with the kind of school work for which teachers normally would be on campus at that time; and that Respondent never requested permission to utilize the school's facilities or equipment for the special purpose of a photo shoot during the 2003 Spring Break. The principal further testified credibly that she was not aware that Respondent was holding photo sessions not within classroom instruction, and that if she had known such shoots were taking place, she would have instructed him to stop. (See Finding of Fact 12.)

26. None of the rules or policies concerning "special purposes" mentioned by the principal were introduced in evidence or cited by the parties.

27. On the morning of March 27, 2003, Respondent informed his wife, for family scheduling purposes, that he was going to a short photo shoot with his former student.

28. The female former student had selected several prospective poses from a website of "human form" photographs recommended by Respondent.

29. She brought with her, to the photo shoot, a number of different garments to change into, and made several changes privately in a dressing room without observation or interference

    from Respondent during the course of the hour and a half photo shoot.

30. The photo shoot began with the young woman fully clothed and being photographed by the Respondent. The shoot then progressed for about an hour to a point where, at the Respondent's suggestion, the young woman was topless, wearing only a street-length skirt and a scarf around her neck which draped, like a halter, across her breasts. Up to that point, the young woman gave Respondent no indication, either verbally or non-verbally, that she was uncomfortable with the photo shoot or with Respondent's presence.

31. The young woman was lying on the floor while posing for a photograph. Respondent approached her, knelt behind her head, and arranged her hair for the next photograph. Respondent then arranged the scarf covering her breasts. While arranging the scarf, Respondent intentionally touched her nipple through the scarf. The touching lasted only a few seconds.

32. The young woman jerked her arm to remove Respondent's hand and yelled at him, "What are you doing? Behave!" Respondent immediately got up and apologized.

33. At that point, the young woman was shocked, scared, and confused, but she continued with the photo shoot without confronting Respondent with her reaction. Before the session ended, 20-30 minutes later, Respondent took more photos of the

    young woman completely nude from the waist up, but Respondent made no further attempts to touch her.

34. Notably, the photographs were not offered at hearing, but the description by both protagonists was significantly similar. The record is silent as to what became of all of the exposed film.

35. The young woman then changed into street clothes. As she was leaving, Respondent attempted to apologize again, but she interrupted him and said, "You're only human."

36. Apparently, the young woman was not concerned about the nude and semi-nude photos, but, contrary to her closing remark to Respondent, she was emotionally distressed by his having touched her nipple. She immediately reported the incident to her boyfriend and parents. Within a few days of speaking with a victim's advocate, she also reported the incident to the Tallahassee Police Department.

37. On or about April 4, 2003, Respondent was arrested and charged with one count of Misdemeanor Battery. The charge was ultimately reduced to Disorderly Conduct. Respondent entered into, and successfully completed, a Pre-Trial Diversion Program. On or about July 8, 2003, the State Attorney's Office issued a "No Information" on the case, and Respondent's criminal record was subsequently expunged.

38. The Leon County School Board brought charges to terminate Respondent. On or about August 7, 2003, Respondent resigned from his employment with the Leon County School Board, pursuant to a settlement agreement which included an agreement that he not apply to teach in Leon County for two years and sanitizing of his school record at the end of that period.

39. There was no proof offered by students, teachers, or administrators, that this incident had offended contemporary community standards or otherwise had reduced Respondent's effectiveness as an educator.

40. As a result of this incident, however, Respondent left a tenured professional services contract with the Leon County School Board, thereby suffering loss of income and retirement benefits. He has also suffered financial consequences in the form of attorney's fees and costs for his criminal and employment cases and for the instant license discipline case.

41. Respondent has been, and continues to be, very embarrassed by his conduct on March 27, 2003, because he is a married man. His relationship with his wife and children has suffered. Respondent represented his conduct with his former student to be a purely spontaneous act of poor judgment which has changed his life, and he deeply regrets it. He has sought professional counseling and has learned to constantly be aware

    of his interactions and reactions to the people around him so that the offensive incident will not be repeated.

42. Upon leaving Lincoln High School and the Leon County School District, Respondent was first employed in contiguous Jefferson County at Monticello New Life, a 30-girl high security facility, where he excelled as a teacher of several subjects and where he once received the Employee of the Month Award.

43. Since July 2005, he has been employed in Leon County as an educator at Tallahassee Marine Institute, a day treatment center and high risk residential program for adolescents, where he also has been the recipient of the Employee of the Month Award for one month. In this capacity, he is employed by the Florida Department of Juvenile Justice. After disclosure of his criminal record to that agency, he has satisfied all of its background checks. Tallahassee Marine Institute requires its instructional employees to have a valid teaching certificate. If Respondent's teaching certificate were to be suspended or revoked as a result of this case, he would be terminated from his current employment at Tallahassee Marine Institute.

    CONCLUSIONS OF LAW

    
    

44. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57 (1), Florida Statutes.

45. Herein, the duty to go forward and the burden of proof, by clear and convincing evidence, is upon Petitioner. Ferris v.

    Turlington, 510 So. 2d 292 (Fla. 1987); Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

46. The statutes and rules applicable to this case are as follows.

47. Section 1012.795(1)(c) and (i), Florida Statutes, provides, in pertinent part:

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the hold may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed 10 years, with reinstatement subject to provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:

       
       

       (c) Has been guilty of gross immorality or an act involving moral turpitude.

       
       

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       (i) Has violated the Principles of Professional Conduct for the Education Profession State Board of Education Rules.

       
       

48. Florida Administrative Code Rule 6B-1.006(4)(c), states in pertinent part:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       
       

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate or the other penalties as provided by law.

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       (4) Obligation to the public requires that the individual:

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       (c) Shall not use institutional privileges for personal gain or advantage.

       
       

49. Florida Administrative Code Rule 6B-4.009(2)(3) and (6), states in pertinent part:

    6B-4.009 Criteria for Suspension and Dismissal.

    
    

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes.1/ The basis for each of such charges is hereby defined:

    
    

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    1. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

       
       

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

    
    

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    1. Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time, a man owes to his or her fellow man or to society in general, and the doing of the act itself, and not its prohibition by statute fixes the moral turpitude.

       
       

50. Section 1012.796(7), Florida Statutes, states in pertinent part:

    1012.796 Complaints against teachers and administrators; procedure:

    
    

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    1. A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:

    
    

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    (b) Revocation or suspension of a certificate.

    
    

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    (d) Placement of the teacher, administrator, or supervisor on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation. An educator who has been placed on probation shall, at a minimum:

    
    

    1. Immediately notify the investigative office in the Department of Education upon termination of employment in the state in any public or private position requiring a educator's certificate.

       
       

    2. Have his or her immediate supervisor submit annual performance reports to the investigative office in the Department of Education.

       
       

    3. Pay to the commission within the first 6 months of each probation year the administrative costs of monitoring probation assessed to the educator.

       
       

    4. Violate no law and shall fully comply with all district school board policies, school rules, and State Board of Education rules.

       
       

    5. Satisfactorily perform his or her assigned duties in a competent, professional manner.

       
       

    6. Bear all costs of complying with the terms of a final order entered by the commission.

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    1. Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.

       
       

    2. Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

       
       

    3. Refer the teacher, administrator, or supervisor to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify.

    
    

51. Petitioner seeks a disciplinary penalty of permanently revoking Respondent's teaching certificate and permanently barring him from any future reapplication, provided all three of the charges are proven against Respondent. Respondent suggests the penalty of only a reprimand, followed by a period of probation to begin at such time as the Respondent is ever given an opportunity to teach in a public school setting.

52. Credibility is not a major factor herein, because so little of the testimony is in conflict. However, in making the foregoing findings of fact, the undersigned has weighed and resolved all credibility issues.

53. Reduced to basic components, a non-student, adult female, approached Respondent, her former teacher, to take

    photographs of her. Both Petitioner and his subject were aware at the outset of this project that "human form" photographs could include nudity. In the course of setting up a pose, which involved the model's partial or suggested nudity through a scarf, Respondent fondled her nipple for a few seconds without her consent. When she told him to stop, he stopped and apologized. The young woman then posed topless without any further touching by Respondent, and when he tried to apologize a second time, she said, "You're only human."

54. This situation represents an encounter between an adult married man with exceptionally bad judgment who suffered a momentary collapse of morality, which he immediately regretted and tried to rectify with an apology, and a young adult female who put herself at risk because she naively and erroneously believed that female nudity is not beguiling/alluring to males, and that nudity and sex are not necessarily linked. Putting oneself in harm's way in order to appear more sophisticated and "grown-up" is not limited to minors, and this event does not constitute a moral lapse by the adult, single female, but her participation also constituted astonishingly bad judgment.

55. That said, had this event occurred anywhere except on school property, it would not have resulted in administrative charges. It is unlikely that any ordinarily prudent person2/ would consider this incident "gross immorality" or "moral

    turpitude," even though a school teacher is to be held to a higher moral standard than other professionals. Castor v.

    Cannon, DOAH Case No. 87-1592 (RO: October 2, 1987; no FO provided to the Division.) Indeed, herein, the State Attorney's reduction of the initial criminal charge of battery to disorderly conduct and the ultimate expunction of Respondent's criminal record are good indicators of a community standard that regards a "pass" by an adult male photographer, addressed to an adult female model, as neither gross immorality, nor moral turpitude. Also, Respondent's settlement with the School Board, which only barred Respondent from reapplying for a teaching position in Leon County for two years, indicates that local educators' moral standards have not been grossly offended by Respondent's behavior. In light of these two barometers of community reaction, plus the complete absence of any evidence at all that Respondent's single, few seconds' lapse of his marriage vows and good judgment is regarded by society in general as "base, vile, or depraved," plus the complete absence of any evidence at all that any educator has concluded that this incident has impaired Respondent's effectiveness as an educator, it cannot be concluded that Respondent is guilty of either moral turpitude or gross immorality.

56. The closest case on some factual points that the undersigned has found is Brogan v. Mansfield, DOAH Case No. 90-

    0286 (RO August 1, 1996; FO September 27, 1996), but the facts proven therein are substantially removed from those at bar.3/ As to the "baseness, vileness, or depravity" standard, the instant case also is so clearly distinguishable from the situation in Practices Counsel [sic.] v. Feichtner, DOAH Case No. 76-1788 (RO: January 26, 1977; FO: April 7, 1977), 1977 WL 54795

    (1977),cited by Petitioner, as to not bear discussing.4/

57. Contrary to those two cases, the fondling incident herein was essentially private behavior that occurred between an adult male and female, not a teacher-student interaction or a situation of an overpowering male adult preying on a helpless minor child. It is accordingly distinguishable from all those cases which discuss potential risks to students or children.

58. Petitioner is not guilty of violating Section 1012.795

    
    

    (1) (c), Florida Statutes.

    
    

59. The use of school and photography club property is another matter. The undersigned is not persuaded that the charge under Section 1012.795 (1) (i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006 (4) (c), and 6B-4.009 should fail because a specific local school board rule prohibiting Respondent's activities was not introduced in evidence.5/

60. Respondent took photographs on school property, with school equipment and school photography club film. In order to

    receive access to school property and all these items over Spring Break, Petitioner did not make a full and complete disclosure to the school administration of what he would be doing and with whom he would be doing it. He did all this in order to accommodate a non-student; to be popular and well- thought of by her and other students and former students; and to practice his own photographic skills.

61. The principal testified that if she had known what was going on, even the innocent photographs of other former students, she would have put a stop to it, and it is not credible that any public school principal would authorize a teacher to take photographs of non-school related subjects if the photographs could, in no way, be either "instructional" or "practice" for class or club members. Therefore, every occasion on which Respondent personally took photographs of former students was not to the advantage of the school and did not promote the education of students.

62. Respondent's previous accommodations of requests by teachers, former students, and even students, which did not result in his teaching those Lincoln High School students, or benefiting the school in some other way, were relatively harmless misuses of his institutional privileges, but the fact that Respondent only told the principal that he needed to use his classroom over Spring Break, instead of clearly stating that

    he would be doing a semi-nude photo shoot is persuasive that he internally questioned the appropriateness of his activity or was concealing that the activity was for his own or another's intangible gain or private advantage. Therefore, it is immaterial that there is no specific rule(s) cataloguing and prohibiting activities unrelated to education, defining "advantage," or making "advantage" equate only with monetary gain.6/

63. Although teachers and administrators had known for some time that photographs of teachers and students were being made without charge by Respondent and members of the photography class or photography club as part of class work or club projects, it begs credibility that Respondent reasonably believed that any public school principal would actively authorize, or even passively tolerate, his taking nude or suggestive photographs of anyone in a school lab, let alone of a former student, in a school lab. The evidence falls short of clearly and convincingly proving that Respondent failed to fully inform the school principal of what he would be doing in the lab over Spring Break so as to lure his female former student into a compromising situation, but the evidence does clearly and convincingly demonstrate that Respondent performed photographic work that did not benefit his students, the school, or the photography club membership, and that he used the school

    location and school and club supplies to make himself popular and improve his own photographic skills. In this case, the undersigned is satisfied, upon the evidence as a whole, that the "advantage" of the March 27, 2003, photo shoot expected by Respondent was not seduction of his former student, but, rather, was a bid by Respondent for increased popularity with her, other students, and former students, through accommodating their requests and through their recognition of his photographic skills.

64. Therefore, while Respondent is not guilty of the other charges, it is concluded that he is guilty of using institutional privileges for personal gain or advantage, in violation of Section 1012.795(1)(i), Florida Statutes and Florida Administrative Code Rule 6B-1.006(4)(c).

65. In considering all of the circumstances of this case, including Respondent's monetary losses, his extensive counseling, his intervening two-year period of penance outside the public school system, and his intervening exemplary two years' private school teaching history, the following recommendation is made.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Education enter a final order that:

1. Suspends Respondent's educator's certificate retroactive to August 7, 2003, and for two years, ending August 7, 2005;

2. Places Respondent immediately, upon entry of the Final Order herein, on probation for two employment years, with the conditions that he shall:

   1. Within the first year of the probation period provide a certified college or in-service program transcript to verify his successful completion or a grade of "pass' or a letter grade no lower than "B" of a course in the area of professional ethics;

   2. Notify the Educational Practices Commission immediately upon his employment or any change of employment as an educator in any public or private Florida school;

   3. Have his immediate supervisor submit performance reports to the Educational Practices Commission at least every three months;

   4. Within 10 days of issuance, submit to the Educational Practices Commission copies of all formal observations and evaluations of him;

   5. During the first three months of each probation year, pay to the Educational Practices Commission $150.00 to defray the costs of monitoring Respondent during that year; and

   6. Requiring that all costs incurred in fulfilling the terms of probation shall be borne by Respondent.

DONE AND ENTERED this 4th day of January, 2006, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2006.

ENDNOTES

1/ Now, Sections 1012.795 and 1012.796, Florida Statutes.

2/ At one time, Florida law recognized an "OPM Rule," which held that whatever the "ordinarily prudent man" would do or believe in the circumstances constituted the current standard of "reasonableness." Today, that standard would be what an "ordinarily prudent person" or OPP would do, or believe, under similar circumstances.

3/ Therein, the Educational Practices Commission (EPC) found, contrary to the recommendation of the then-Hearing Officer, that "[T]he facts, established and found, to-wit: that the respondent, an adult male, gave an alcoholic beverage to a minor female person and photographed her in lingerie and in the nude, constitute, as a matter of law, gross immorality or acts involving moral turpitude, ..." In the instant case, the "female person" was not a minor, protected at law. Florida law neither protects adult females from their own errors of judgment nor proscribes male adults, even educators, from sexual

dalliance with adult females. Even so, in Mansfield, the EPC did not revoke the educator's certificate permanently. His educator's certificate, which had already expired, was not to be reissued for four years, and he was ordered to fulfill other requirements during a subsequent probation.

4/ The decision in Feichtner declared there to have been gross immorality and moral turpitude, pursuant to a previous discipline statute, where a homosexual male teacher donned a bikini, sat in trees and hid behind bushes in a public park, and thereafter grabbed the genitals of an undercover policeman in that same public park, contrary to express Florida laws prohibiting such behavior.

5/ Petitioner provided no Leon County School Board rule or policy and no other law specifically prohibiting the use of this equipment during Spring Break or requiring a specific prior disclosure, but common sense and the natural order of society allow the inference that nude photography in a public school in unauthorized.

6/ See n.5, above.

COPIES FURNISHED:

Mary F. Aspros, Esquire Meyer and Brooks, P.A.

2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

Jennifer Gilmore, Esquire Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 05-002338PL

Orders for Case No: 05-002338PL